End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

1.7:200 Conflicts of Interest in
General

1.7:210 Basic Prohibition of
Conflict of Interest

ARPC 1.7 is the same as MRPC 1.7 and the rules of most jurisdictions which
require that a lawyer not represent a client when there exists a conflict or
potential conflict of interest in the absence of informed consent. Alabama is
generally more liberal in permitting consent than many states, particularly
taking into account the impact of rural and sparsely populated areas on the
availability of legal services, as well as the limited number of lawyers whose
practices concentrate in particular areas such as, for example, sophisticated
financial matters or bankruptcy matters. A lawyer, however, must be wary of
circumstances which would make the necessary disclosure in order to receive
a client's consent impossible under ARPC 1.7. If a disinterested lawyer would
conclude that the client should not agree to the representation under the circumstances,
the lawyer involved cannot properly ask for such agreement or provide representation
on the basis of the client's consent. If the conflict arises after representation
has begun, the lawyer should withdraw from further representation of the client
as to the conflicted matter.

In Brooks v. State, 686 So.2d 1285 (Ala. Crim. App. 1996), the Court
held that a lawyer may not represent a defendant when the same lawyer "had previously
represented the confidential informant who was instrumental in the defendant's
arrest." More specifically, the lawyer had represented the informant in the
case that led to the defendant's arrest. The Court reasoned that "loyalty to
a client is . . . impaired when a lawyer cannot consider, recommend or carry
out an appropriate course of action for the client because of the lawyer's other
responsibilities or interests." In Ex Parte Tegner, 675 So.2d 514 (Ala.
Crim. App. 1995), the Court held that a lawyer should be disqualified from representing
a defendant charged with murder after the lawyer had previously represented
the sole witness to the murder on an unrelated DUI charge. The Court found that
the lawyer should be disqualified "because he had a conflict of interest in
that he could have obtained confidential information from the witness when he
represented him on a DUI charge." Defendant's attorney who previously served
as a municipal judge, and in the role, signed a warrant permitting a search
of the defendant's property was also disqualified based on conflict of interest. Browning
v. State, 607 So.2d 339 (Ala. Crim. App. 1992).

Generally a lawyer should not represent parties with conflicting
interests in a civil lawsuit in the absence of consent. See Section 1.7:340
for an interesting decision addressing the situation when a conflict arises
after representation begins.

1.7:315 Insured-Insurer
Conflicts [see also 1.8:720]

A lawyer may not permit an insurance company to interfere
with the lawyer's exercise of professional judgment in rendering legal services
to the insured. A lawyer should not permit the disclosure of information relating
to the representation to a third party, such as a billing auditor, if there
is a possibility that waiver of confidentiality, the attorney-client privilege
or the work-product privilege would occur. If an attorney has any reasonable
basis to believe that disclosure of information relating to the representation
to a third party could result in a waiver of client confidentiality, then the
attorney should decline to make such a disclosure. (RO-98-02).

1.7:320 Conflicts of Interest in
Criminal Litigation

1.7:330 Multiple Representation
in Non-Litigated Matters

ARPC Rule 1.7 has been addressed in several ethics opinions dealing with multiple representations in class actions. The General Counsel permitted a law firm to represent a class of pharmacy owners who were suing various drug companies for price fixing and also represent a class of consumers who were also suing the drug companies for price fixing. (RO-96-03).

In RO-96-07, the General Counsel addressed conflicts of interest that may arise when one law firm represents another law firm in several employment law matters. The General Counsel stated that even though the law firms are often adversaries in employment discrimination cases one law firm may still represent the other with the condition that the lawyer-client relationship between the two firms will not interfere with each firm's representation of their own clients in matters adverse to the other firm. (RO-96-07). The General Counsel also found that the firms did not have to notify and receive consent from their clients.

1.7:340 Conflicts of Interest in
Representing Organizations

The Alabama Supreme Court addressed the "hot potato" issue
in AmSouth Bank v. Drummond Co., Inc., 589 So.2d 715 (Ala. 1991). In
this case, one of the law firms' clients, while using other counsel, joined
litigation as a plaintiff adverse to another of the firm's client. The Court
held that the law firm could continue defending the client in the suit brought
by the former client without violating ARPC 1.7. The Alabama Supreme Court did
not apply the "hot potato" rule because (1) the law firm did not create the
conflict of interest with the clients and (2) withdrew from representing the
client which was least likely to be harmed by the firm's withdrawal. Butsee,
RO-91-08, a lawyer may not fire a client to take advantage of former client
rule. Further, a lawyer may not file a lawsuit on behalf of one client against
an entity of which another client was a general partner. (RO-91-08).

1.7:400 Conflict of Interest
Between Current Client and Third-Party Payor

1.7:410 Insured-Insurer
Conflicts [see 1.7:315 and 1.8:720]

The relationship among the insured, the insurance company
and the attorney is often referred to as a "tripartite" relationship. Mitchum
v. Hudgens, 533 So.2d 194, 198 (Ala. 1988). Absence any conflicts between
the interests of the insurance company and the insured, the attorney represents
both entities as his clients. Id. at 198. When a conflict arises between
the insurance company and the insured, then the defense attorney must recognize
that his client now is only the insured. L&S Roofing Co. v. St. Paul
Fire & Marine Ins. Co., 521 So.2d 1298, 1303 (Ala. 1987). A defense
counsel has an "enhanced obligation of good faith" as to the insured when the
insurer is defending under a reservation of rights. L&S Roofing,
521 So.2d at 1303. In such a reservation of rights defense situation, the insurance
defense counsel owes a continuing duty of complete disclosure to the insured
as to (1) potential conflicts of interest between the insured and insurer; (2)
all relevant information concerning the defense of the case; and (3) all offers
of settlement when they are made. Any conflicts of interest must be resolved
in favor of the insured.

1.7:420 Lawyer with Fiduciary
Obligations to Third Person [see 1.13:520]

When a lawyer is retained by the executor of an estate to probate the estate the lawyer represents the estate. The lawyer represents the estate by acting for and through the fiduciary of the estate, the executor, for the ultimate benefit of the beneficiaries of the estate. Because the lawyer is retained by the executor to represent the estate and the executor, as fiduciary, is legally required to serve the beneficiaries, the lawyer also has an obligation to the beneficiaries. This relationship has been characterized as one where the fiduciary is not the only client, but merely the "primary client" while the beneficiary is the "derivative client." In some situations when there is a sole beneficiary of the estate, that beneficiary (ostensibly a non-client) may be entitled to the loyalty of the lawyer to much the same extent as the fiduciary. (Informal Opinion March 15, 1994).

See RO-96-02 for situations involving a government lawyer's representation in child support cases and the potential for conflicts.

1.7:500 Conflict of Interest
Between Current Client and Lawyer's Interest [see also 1.8:200]